Playing the Jury Selection Game

 Before the Game Begins:

Before the jurors are selected to be on a jury, they have to pass two gatekeeping processes.

Gate 1 - Able and Qualified: 

    First, a large number of potential jurors are called and the judge weeds through them and excuses the people that he/she finds are not both able to serve and legally qualified to serve. 

Gate 2 - Fair and Impartial:

    The remaining prospective jurors are questioned by the attorneys and/or the judge. Potential jurors who claim are unable to be fair and impartial are excused and may go home. It is also during this process that the potential jurors are asked questions about their jobs, opinions, familiarity with the parties, etc. 

    These two gatekeeping processes make a lot of sense. We first want ensure that our potential jurors are able and qualified under the law to sit on the jury and we want ensure that each party is able to present their case to a jury that will be open to hearing the whole case, willing to consider all evidence and arguments, and make the best decision based on what is presented to them. We want the judge and parties to have an opportunity to hear from the potential jurors in order to determine the jurors who will best be able to provide this service. 

    Although these two gatekeeping processes have many issues, they seem pretty simple on their surface. Find the able and qualified jurors and the jurors who are going to be fair and impartial. Simple. Many people understand these two gates and know a little about them. But it is the game that is the hardest to understand and the part that people may not know as much about. I know I didn't realize how the jury selection game worked until I looked into it further.

The Jury Selection Game:

    During the game, the two sides will take turns striking jurors that they don't want and explain the reason that they stuck them. Each attorney has a number of peremptory strikes depending on the court that they are in. If we are considering how a jury can end up as nearly all "......," then it is here that we can see how this can happen. It is possible that at this point, an evenly split demographic that mirrors the community before the game and now become less evenly split based on the jurors answers to the voir dire questions. It is also important to note that the attorneys go through the list of the potential jurors in the order that they are seated. This means that the remaining jurors could be in a number of possible seating orders. 

    With this in mind, the game starts with the prosecution's first move. The prosecution will then proceed to accept and strike jurors and give explanations for their strikes. The defense is then able to respond to these strikes in which the judge then decides whether to allow the strike. After the prosecution fills the 12 seats, it is the defense's turn.

    The defense, only choosing from the jurors that the prosecution accepted, is able to challenge the jurors and select the jurors to fill those spots in the order that the remaining juror are seated. This means that if 11 of the 12 seats are X and 1 is Y, then these are the only jurors that the defense will be able to challenge. The defense, like the prosecution, will select or strike jurors. After the defense has filled those juror seats, the prosecution will go and do the same thing that the defense just did. The defense and the prosecution will continue like this until all 12 jurors are selected. 

Conclusion

    How can a jury end up as nearly all "......"? That depends on 2 main factors. First, it depends on the order the potential jurors are seated after voir dire. If they are in an order which would lead to only people with X being selected until the 30th potential juror then that is how the chips fall. The jurors nearer the front are more likely to be selected. Second, it will depend on who the prosecutor selected as its 12 jurors to start. If the prosecutor selected 11 of X and 1 of Y, then that is what the defense has to start with, and it has no other options but to challenge from those 12 jurors.

    Before reading further about the jury selection process, this is something that had not occurred to me, and maybe something that many others had not considered. For an illustration go to the following: Example